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1985 DIGILAW 254 (MAD)

P. Tirupathi Reddy v. P. Sujatha

1985-06-10

SRIRAMULU

body1985
Judgment: 1. The first respondent herein laid a complaint in the Court of the I Additional Judicial Magistrate of I Class, Warangal, against the revision petitioner in both the revision petitions for an offence under section 494 , I.P.C. with the allegation that she was legally married for a second time during the continuance of their marriage on 29.10.1980 which is void against the provisions of the Hindu Marriage Act and as such he committed an offence under section 494, I.P.C. and the others in the complaint abetted the offence. The case was registered as C.C.No.15 of 1981. The trial of the case was concluded and that when it was posted for arguments, the first respondent herein filed a petition under section 311, Cr.P.C. for the examination of her father and one K.Kodandaram Reddy who were witnesses to the marriage between herself and the revision petitioner herein who could not be examined earlier, and that their evidence is material to establish the first marriage between herself and the revision petitioner without which a great damage is likely to be caused to the merits of the case. The first respondent-revision petitioner herein resisted the petition and contended inter alia that the prosecution has closed its case and after the examination of the accused the case was posted for arguments and that the present petition under section 311, Cr.P.C. is intended to fill up the lacunae in the case. The first respondent herein also filed a petition for reopening of the case and that petition was also opposed by the petitioner. 2. The learned Magistrate came to the conclusion that the evidence of two witnesses sought to be examined by the first respondent herein appears to be essential to the just decision of the cases and accordingly allowed the petitions. 3. Against that order of the learned Magistrate the respondent-revision petitioner herein filed Criminal Revision Petition Nos.275 and 276 of 1984. These revision petitions are directed against the impugned orders passed by the learned Magistrate. 4. 3. Against that order of the learned Magistrate the respondent-revision petitioner herein filed Criminal Revision Petition Nos.275 and 276 of 1984. These revision petitions are directed against the impugned orders passed by the learned Magistrate. 4. Sri G.Narayan Reddy, the learned Counsel for the revision petitioner contended that the petitioner herein was charged for an offence under section 494 , read with section 17 of the Hindu Marriage Act that under section 17 of the Hindu Marriage Act, the marriage between two Hindus becomes void provided it is established that after the commencement of the Hindu Marriage Act, 1955 the petitioner had a spouse living. According to him, the word “Solemnize” means, in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form, it cannot be said to be ‘solemnized’ and that it is, therefore, essential, for the purpose of section 17 of the Act, that the marriage to which section 494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or approved by any established custom. 5. His further contention is that not only the first marriage between the petitioner and the first respondent had to be established but the first respondent is also to prove the second marriage. According to him, the first respondent, in spite of closing her case, has not established the first as well as the second marriage as alleged in the complaint and that the lacuna which occurred in the case is sought to be filled up by calling further two witnesses to fill up the gap and cause prejudice to the case of the petitioner herein. 6. Section 311 of the Code of Criminal Procedure, 1973 (Act II of 1974 ) which is analogous to section 540 of the Old Code give a general power to the Court to summon and examine any person as witness at any stage of the case if his evidence appears to be essential to the just decision of the case. The object of this section obviously is to enable court to arrive at the truth of the facts under investigation irrespective of whether a particular party chooses to summon him or not. The object of this section obviously is to enable court to arrive at the truth of the facts under investigation irrespective of whether a particular party chooses to summon him or not. By the very nature of the subject dealt with by section 311 of the Code of Criminal Procedure, the action to be taken by the Court thereunder must necessarily depend upon the facts of each case and it is not possible to formulate a general rule applicable to all cases determining when and under what circumstances the power under the section should be exercised. What is just in a given act of facts and circumstances may be clearly unjust in another set of facts and circumstances. Any attempt, therefore, to limit the amplitude of the power or to formulate rules to govern the exercises of the Court's discretion in respect of it can never be totally free from the possibility of its making its court powerless to render justice in the peculiar circumstances of a particular case. The only limitations which can be placed on that power are those which the judicial conscience of the Court may prescribe in the facts and circumstances actually before it. 7. In Jamatraj Kewalji Govani v. State of Maharashtra Jamatraj Kewalji Govani v. State of Maharashtra (1968)1 S.C.J. 293: (1969)2 S.C.A. 59: (1967)3 S.C.R. 415 : A.I.R. 1968 S.C. 178 the Supreme Court held that: “Section 311, Cr.P.C. is intended to be wide as repeated use of the word ‘any’ throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word ‘may’ in the first part and of the word ‘shall’ in the second firmly establishes this difference. Under the first part which is permissive, the Court may act in one of the three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the court to act in these three ways or any one of them, if the just decision of the case demands it. The second part is obligatory and compels the court to act in these three ways or any one of them, if the just decision of the case demands it. As the section stands there is no limitation on the power of the court arising from the stage to which the trial may have reached provided the court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and expectedly.” The Supreme Court further observed: “The power of the court under section 311 , Cr.P.C. is exercisable at any time and the Code of Criminal Procedure clearly so states. It is difficult to limit the power under the Code to cases which involved something arising ex improviso which no human ingenuity could see in the courses of the defence. The Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. It would appear that in criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and make this the duty and obligation of the Court provided the just decision of the case demand it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.” The Supreme Court further observed thus: “The contention was that the trial in the case had gone through the stage of taking evidence for prosecution framing of the charge, recording of the plea and the defence of the accused and as the accused did not wish to lead evidence it had reached the stage of section 258 and the court could either acquit or convict him and that the Magistrate had really allowed the prosecution to fill a gap in the case which had the effect of dispensing with the burden which was on the prosecution to prove the case under section 135(a) and (b) of the Customs Act and of placing the burden upon the accused to rebut the presumption that the goods were smuggled. This, it was said, was not only unfair but unjust and cannot be regarded as falling within the powers of court, however wide the language of the section. It was held that the present case was not one in which the prosecution was trying to fill a gap in the prosecution case. The Court was right in thinking that a just decision of the case required that the nature of the belief underlying the seizure should be before it on oath of the person making the seizure so that the accused might be required, as the policy of the Customs Act, 1962 requires, to prove his innocent possession. The accused had really no defence in view of the Control Order of 1955 and the gap of time between the promulgation of the order and the date of the seizures. He admitted this. The accused had really no defence in view of the Control Order of 1955 and the gap of time between the promulgation of the order and the date of the seizures. He admitted this. In these circumstances it cannot be said that the Court had exceeded its jurisdiction in acting under the second part of section 311 of the Code of Criminal Procedure.” In State of West Bengal v. Tulasidas Mundhra State of West Bengal v. Tulasidas Mundhra (1963) 2 S.C.J. 204, the Supreme Court held that: “ Section 311 of the Code of Criminal Procedure confers on Criminal Courts very wide powers. It is no doubt for the Court to consider whether its powers under this section should be exercised ornot. But if it is satisfied that the evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by section 311 is conditioned by the requirement that such exercise would be essential to the just decision of the case.” 8. Judged in the light of the above principles, I am of the view that this section gives ample power to the Court to examine a witness at any stage of the case and even at the stage of arguments of the case provided his evidence appears to the Court to be essential to the just decision of the case. The words “just decision” do not necessarily imply that the decision should be either in favour of the prosecution or the defence. By the mention of just the Court is cautioned against taking any action which result in injustice either to the accused or to the prosecution. The expression “at any stage”, in section 311 gives very wide powers to all courts at any stage in any proceeding to examine witnesses if such evidence appears to be necessary for a just decision of the case. IN RE. Pattabhiramayya IN RE. Pattabhiramayya (1942) 2 MLJ. 278 : 55 L.W. 517: A.I.R. 1942 Mad. 668. Although it is true that proper discretion has to be exercised under section 340, still the terms of this section are extremely wide, and any court can at any stage of any inquiry, trial or other proceeding summon any person as a witness if his evidence appears to it essential to the just decision of the case. 668. Although it is true that proper discretion has to be exercised under section 340, still the terms of this section are extremely wide, and any court can at any stage of any inquiry, trial or other proceeding summon any person as a witness if his evidence appears to it essential to the just decision of the case. This power can be exercised even after the close of the case for the prosecution and the defence. IN RE. Chellaperumal IN RE. Chellaperumal (1924) 25 Cr.L.J. 354. 9. A Magistrate can, under this section, receive fresh evidence after the evidence on both sides has been taken and the case adjourned for judgment, inasmuch as the case is still pending when such evidence is being taken. I.L.R. (1897) 24 Cal. 167. 10. In A.I.R. 1958 All. 439 it has been held that for the purposes of section 311, trial terminates with the pronouncement of the judgment and so fresh evidence may be called up to the stage of delivering judgment. 11. In (1948) 49 Cr.L.J. 242 it was held: “After the evidence for the defence was closed, the Magistrate examined certain witnesses for the prosecution giving at the same time full liberty tothe accused to cross-examine them, the High Court declined to interfere in revision. The Magistrate can summon and examine witnesses at a late stage of the case after the defence has closed, where it is necessary to meet the evidence of a witness.” 12. In Manhu Charan Sarat and another v. Radhamohan Padhi Manhu Charan Sarat and another v. Radhamohan Padhi A.I.R. 1965 Orissa 219 it was held: “A trial or enquiry continues until the judgment in the case is delivered.” 13. In Anand Chander Singh v. Basu Madh Anand Chander Singh v. Basu Madh A.I.R. 1964 Bombay 155, it was held thus: “The Magistrate is, therefore, strictly within his rights under this action in receiving fresh evidence after evidence of both sides had been taken and the case adjourned for judgment, inasmuch as the case was still a pending case when such evidence was taken.” 14. In Ngounipu Kabui v. Lungbujei Kabui Ngounipu Kabui v. Lungbujei Kabui A.I.R. 1969 Manipur 8, it was held: “The first part of this section empowers the court to summon and examine any witness and the second part casts a duty on the court to summon and examine any witness whose evidence appears to it essential for the just decision of the case. There may be occasions when in the discharge of this duty, it is necessary, even after the evidence for defence has been closed, or the arguments have been concluded, provided the accused is given fresh opportunity to explain the evidence brought on the record, and to give such further evidence for defence as the accused might consider necessary. Dindayal v. Basudeo Dindayal v. Basudeo A.I.R. 1955 Ajmer 21; Beni Madho v. Emperor Beni Madho v. Emperor A.I.R. 1941 Oudh. 20; State of Kerala v. Ayyappan Gopalan State of Kerala v. Ayyappan Gopalan (1966) K.L.T. 894.” 15. In the present case, the witnesses sought to be examined are the father of the complainant and one K.Kodandaram Reddy in support of the marriage that took place between the revision petitioner and the first respondent herein. In fact the complainant as well as other witnesses have already testified that the marriage between the petitioner herein already testified that the marriage between the petitioner herein and the first respondent herein took place about 20 years ago and that fact was not challenged in the cross-examination of the complainant and other witnesses. 16. It is only when a composite question as regards the first marriage as well as the second marriage was put to the accused (petitioner herein) during his examination under section 313, Cr.P.C. and the accused made a bald denial stating, “it is not true.” It is only to prevent the eventuality of total denial of the. first marriage the complainant was advised to summon her father and one Kodandaram Reddy who were present in the marriage to prove that the marriage between the complainant and the accused took place about 20 years prior to the complaint. In fact, the mistake has been committed by the learned Magistrate should have put a separate question as regards the first marriage between the petitioner herein and the first respondent herein. In fact, the mistake has been committed by the learned Magistrate should have put a separate question as regards the first marriage between the petitioner herein and the first respondent herein. No prejudice can be said to have been caused to the accused as it was within his personal knowledge whether he married the complainant or not about 20 years ago and it is open to him to take a factual stand as he may desire in which case the question of causing prejudice does not arise. 17. For these reasons, I do not find any merit in these Criminal Revision Petitions. Accordingly, the Criminal Revision Petitions are dismissed. Crl.R.Ps. dismissed.